United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE.
and Brandi Jo Hirsch brought this action against the
Wilmington Trust, National Association, and Wilson &
Associates, PLLC (collectively “Defendants”), in
the Williamson County, Tennessee, Chancery Court alleging
state law violations. (Doc. No. 1-1.) Defendants removed the
case to the Court, alleging that the Court has diversity
jurisdiction under 28 U.S.C. § 1332. (Doc. No. 1.) After
two show cause orders (Doc. Nos. 5, 23), the Court is
satisfied that it has jurisdiction over this matter. Before
the Court is Defendants' Motion to Dismiss (Doc. No. 10.)
For the following reasons, Defendants' motion is
February 1, 2005, Robert and Lisa Laidlaw purchased the
property at 28 Colonel Winstead Drive in Brentwood, Tennessee
(hereinafter, “the Property), from Turnberry Homes,
LLC. (Doc. No. 1-1 at 2.) The Laidlaws financed the home with
a loan from Southstar Funding, LLC (“Southstar”),
and secured the loan with a Deed of Trust. (Id.) The
Deed of Trust named Mortgage Electronic Registration Systems,
Inc. (“MERS”) as the nominee of Southstar.
(Id.) On May 9, 2006, the Laidlaws refinanced their
mortgage with two new deeds of trust. (Id.)
Countrywide Bank, N.A., issued the senior deed of trust (the
“Countrywide Deed”), in the amount of $672,
000.00. (Id.) The Countywide Deed named MERS as the
nominee of Countywide Bank. (Id.) Community First
Bank & Trust issued the junior deed of trust (the
“Community Deed”) in the amount of $250, 000.00.
(Id.) On August 3, 2011, MERS assigned its
beneficial interest in the Countrywide Deed to BAC Home Loans
Servicing (“BAC”). (Id. at 3.)
2011, Mr. Hirsch attended a seminar conducted by Eden Gifted
Properties (“Eden”). Eden represented that it
helped customers eliminate mortgage debt related to real
estate. (Id.) Eden customers would pay a
“donation” of 10% of the debt value to Eden in
exchange for documents evidencing a release of the debt.
(Id.) Based on these representation, the Hirschs
purchased the Property and used Eden's services to
release the two deeds of trust. (Id.)
September 13, 2011, the Hirschs purchased the Property from
the Laidlaws, subject to the two deeds of trust.
(Id.) With Eden's assistance, the Laidlaws
executed a quitclaim deed to the Hirschs, which the Hirschs
recorded with the Williamson County Register of Deeds.
(Id. at 4.) The Hirschs then paid Eden $60, 000.00
to negotiate a release of the Countrywide Deed.
(Id.) Eden procured a release of the Countrywide
Deed (the “Countrywide Release”), signed by BAC
on April 18, 2012. (Id.) On April 27, 2012, the
Hirschs recorded the Countrywide Release with the Williamson
County Register of Deeds. (Id.)
April 25, 2012, the Hirschs negotiated the release of the
Community Deed for $10, 000.00 cash payment. (Id.)
On June 8, 2012, Community executed a release of the
Community Deed (the “Community Release”).
(Id.) On June 12, 2012, the Hirschs recorded the
Community Release with the Williamson County Register of
2014, the principals of Eden were convicted of mail fraud in
connection with their business. (Id. at 5.)
Apparently, Eden on behalf of its customers fraudulently
executed a portion of the releases from deeds of trust,
creating two hundred fifty victims. (Id.) The
Hirschs do not know whether Eden obtained a valid release
from BAC or if the Countrywide Release is otherwise
authentic. (Id.) However, a search of the Williamson
County Register of Deeds shows that nobody has recorded any
document to suggest that the Countrywide Release is invalid,
void, or otherwise subject to challenge. (Id.)
22, 2014, BAC purported to assign the Countrywide Deed to the
Christiana Trust (the “Christiana Assignment”).
(Id. at 6.) On May 29, 2014, the Christiana Trust
recorded the Christiana Assignment with the Williamson County
Register of Deeds. (Id.) On May 27, 2015, the
Christiana Trust purported to assign the Countrywide Deed to
Wilmington Trust, National Association (the “Wilmington
Assignment”). On June 18, 2015, Wilmington Trust
recorded the Wilmington Assignment with the Williamson County
Register of Deeds. (Id.)
8, 2016, Wilmington Trust appointed Wilson & Associates
as the substitute trustee under the Countrywide Deed in order
to foreclose on the Property. (Id.) On June 17,
2016, Wilson & Associates recorded the Substitution of
Trustee with the Williamson County Register of
Deeds.(Id.) On July 15, 2016, Wilson
& Associates published a Notice of Trustee's Sale, in
which it stated its intent to sell the Property on August 10,
2016, at 11:00 a.m., to satisfy the Countrywide Deed.
STANDARD OF REVIEW
purposes of a motion to dismiss under Rule 12(b)(6), the
Court must take all the factual allegations in the complaint
as true. Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009). To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim for relief that is plausible on its face.
Id. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id. Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id. When
there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief. Id.
at 679. A legal conclusion couched as a factual allegation
need not be accepted as true on a motion to dismiss, nor are
recitations of the elements of a cause of action sufficient.
Fritz v. Charter Township of Comstock, 592 F.3d 718,
722 (6th Cir. 2010).
Complaint alleges two causes of action against Defendants:
(1) declaratory judgment that (a) the Countrywide Deed has
been released, (b) Defendants lack standing to foreclose the
Countrywide Deed, and (c) the threatened foreclosure would
violation Tennessee Code Annotated § 29-18-101; and (2)
to enjoin Defendants from foreclosing on the ...